Pankajini Sahu And Another vs Joint Director
2023 Latest Caselaw 2602 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                          CRLMC No.1207 of 2022

           Pankajini Sahu and Another               ....            Petitioners
                                                   Mr. Pratik Dash, Advocate



                                        -Versus-


           Joint Director, Enforcement         ....      Opposite parties
           Directorate, Goi and Another
                         Mr. Bibekananda Nayak, Standing Counsel for ED

                                          And

                              CRLMC No.1984 of 2021

           Daktar @ Doctor @ Jatindra Sahu and Another ... Petitioners
                                     Ms. Deepali Mohapatra, Advocate


                                        -Versus-


           Joint Director, Enforcement
           Directorate, Goi and Another          ....      Opposite parties
                           Mr. Bibekananda Nayak, Standing Counsel for ED


                    CORAM:
                    JUSTICE R.K. PATTANAIK

                      DATE OF JUDGMENT:31.03.2023

      1.

Both the petitions since involve a common question of law have been clubbed together for disposal by the following order.

2. Instant petitions under Section 482 Cr.P.C. are at the behest of the petitioners invoking the extra-ordinary jurisdiction of this Court for quashment of the impugned notices dated 29th September, 2021 under Annexure-6 issued by the learned District

& Sessions Judge, Khurda at Bhubaneswar-cum-Special Judge, PMLA, 2002 (in short 'PMLA court') corresponding to complaint case (PMLA) No. 88 of 2020 on the grounds inter alia that such proceeding is to be analogously tried with C.T.R. Case No. 8 of 2016 pending in the file of learned Special Judge (Vigilance), Bolangir under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 (herein after referred to as 'the P.C. Act') and Section 109 IPC.

3. Heard, Mr. Das and Ms. Mohapatra, learned counsel for the respective petitioners and Mr. Nayak, learned counsel for the ED.

4. In the instant case, an F.I.R. was lodged by the Vigilance Department under the alleged offences of the P.C. Act and IPC against the petitioners and others in the year 2013 which led to the submission of the chargesheet on 25th February, 2016 in connection with C.T.R. Case No. 8 of 2016. In the meanwhile, summons under Section 50 of the PMLA were issued to the petitioners by the PMLA court for them to appear in complaint case (PMLA) No. 88 of 2020. The petitioners submit that the PMLA authority did not move the Vigilance court at Bolangir for committal of the case to the Special court as required in terms of Section 44(1)(c) of the Prevention of Money Laundering Act, 2022 (hereinafter referred to as 'the PMLA'). In absence of any such compliance of Section 44 of PMLA, according to the petitioners, the proceeding before the learned PMLA court and issuance of summons to them would not be in accordance with law and hence, therefore, impugned notices under Annexure-6 are liable to be quashed with consequential direction for transmission of the record in connection with Sambalpur Vigilance P.S. Case No. 54 of 2013 to the PMLA court for a joint trial and its analogous disposal.

5. Referring to clause(c) of Section 44(1) of the PMLA, learned counsel for the petitioners submit that the said provision demands the Special court also to try the Vigilance case which is required to be committed by the learned Special Judge, Vigilance, Bolangir. It is further submitted that the aforesaid provision begins with a non-obstante clause and on a plain reading of the same, it would appear that both the cases one in respect of the scheduled/predicate offence(s) and the other under PMLA are to be tried analogously by the learned PMLA court. While contending so, the decision of the Apex Court in Bijaya Madan Lal Choudhury Vrs. Union of India & others decided on 27th July, 2022 by the Apex Court is placed reliance on. It is contended that in order to accelerate trial of both the cases, Section 44(1)(c) of the PMLA stipulates that the Authority under the PMLA is to submit an application before the Special court authorized to try scheduled offences where after the proceeding pending before the said court shall be committed to the designated court under the PMLA and since no application was filed for such committal before the learned Special Judge, Vigilance, Bolangir, the proceeding under the PMLA before the designated court at Bhubaneswar should not proceed. The relevant excerpt of the judgment in Bijaya Madan Lal Choudhury (supra) is referred to by the learned counsel for the petitioners and it is submitted that an application under Section 44(1)(c) of the PMLA is what needed to be filed before the learned Special court trying the scheduled offences and in such view of the matter, it is incumbent on the part of the PMLA authority to move for the same and to ensure that the Vigilance proceeding is committed to the designated court at Bhubaneswar.

6. Mr. Nayak, learned counsel for the ED, on the other hand, objected to the contention of the learned counsel for the petitioners and would submit that the proceeding before the

PMLA court at Bhubaneswar is independent and in respect of offences punishable under Section 4 of the said Act and in so far as Section 44(1)(c) of the PMLA is concerned, it is an enabling provision and directory in nature and despite use of the word 'shall' occurring therein, it is not mandatory for the PMLA authority to move the Special court.

7. The decision in Bijay Madal Lal Choudhury (supra) is also cited by Mr. Nayak, learned counsel for the ED to suggest that the offence of money laundering is an independent offence regarding the process or activity connected with the proceeds of crime which have been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence which is to be tried by the designated court and the committal of the Vigilance proceeding by referring to Section 4(1)(c) of the PMLA is subject to discretion of the PMLA authority which again depends on the facts and circumstances each particular case and in so far as the petitioners are concerned, they do not have any locus standi to compel the PMLA authority to exercise such discretion and hence, the petitions at their behest are devoid of merit and therefore liable to be out rightly dismissed. Apart from above, Mr. Nayak, learned counsel for the ED refers to host of other decisions which are with regard to the limitations in exercise of inherent jurisdiction Section 482 Cr.P.C. contending that exercise of such power is an exception.

8. As per Section 44(1)(c) of the PMLA, it is specified that if the court which has taken cognizance of the scheduled offence is other than the Special court which has taken cognizance of the complaint of the offence of money laundering under clause(b), it shall, on an application by the authority authorized to file a complaint under the PMLA, commit the case to the Special court which, on receipt of the same, shall proceed to deal with it from

the stage when it is committed. In view of clause(a) of sub-section (1) of Section 44 of the PMLA, an offence punishable under the said Act and any connected scheduled offence shall be triable by the designated court constituted for the area in which the offence has been committed provided that the Special court trying the scheduled offence before the commencement of the Act shall continue to try such scheduled offence. Having gone through the relevant provisions of the PMLA, it is made to understand that a complaint by an authority authorized under the PMLA to be filed before the designated court cognizance of which shall be taken under Section 3 thereof without the accused being committed to it for trial independently in respect of the scheduled offence and the proceeding before the court of competent jurisdiction shall lie, however, in view of Section 44(1)(c) of the PMLA a simultaneous trial of the offences under the PMLA as well as the Special Act shall be held provided the PMLA authority submits an application before the Special court.

9. The scheme of the PMLA indicates that the definition of money laundering as provided in Section 2(p) is referrable to Section 3 and it casts a liability on any person who directly or indirectly attempts to indulge or knowingly assists or becomes a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty for such an offence. Section 4 of the PMLA provides the punishment for money laundering. The object of the PMLA is to prevent money laundering and also to provide for confiscation of property derived from or involved in money laundering and for matters connected therewith or incidental thereto. The expression 'proceeds of crime' is defined in Section 2(u) of the PMLA and likewise scheduled offence stands described in Section 2(y). Under the PMLA, all the offences punishable under Section 4 shall be tried by the court constituted under Section 43 thereof. Section

43(2) of the PMLA further provides that while trying an offence under the said Act, a court shall also try an offence other than an offence referred to in sub-Section (1) with which the accused may be charged under the Code of Criminal Procedure, 1973 at the same trial. Essentially the Act suggests that the offence under the money laundering law is to be tried by the Special court and the predicate offences by the court of competent jurisdiction. The existence of proceeding for a predicate offence is sine qua non to initiate a prosecution under the PMLA. However, on a sincere reading of the PMLA and its provisions, the Court finds that the said Act does not contemplate that offence under the PMLA and the predicate/scheduled offences shall both the tried by the same designated court. There is no such provision in the PMLA to indicate that a joint trial shall have to be held for and in respect of the offences under the PMLA and P.C. Act. In fact, Section 44(1)(c) of the PMLA presupposes the existence of two separate proceedings, one before the Special court and the other with the court under the PMLA. In such a situation, Section 41(1)(c) of the PMLA confers the authority to make an application with a request to the Special court to commit the case relating to the scheduled offence to the designated court under the PMLA and unless such an application is so moved, the enquiry and trial vis-à-vis the predicate offence shall be continued in the court of competent jurisdiction.

10. The question is, whether, it is mandatory for the PMLA authority to seek committal of the case related to the scheduled offence and in case such an option is exercised, if the Special court as a matter of course bound to allow it?

11. The legislative intent does not make the provision under Section 44(1)(c) of the PMLA obligatory on the authorized officer invariably to make an application for committal. Had it been so,

there would have been no reason of any committal under Section 44(1)(c) of the PMLA which again depends on an application of the PMLA authority. If such was the object and purpose of the law, then it should have been expressly made clear about a joint trial of the offences under the PMLA and the Special Act. No doubt, Section 71 of the PMLA envisages an overriding effect which stipulates that the Act shall prevail upon anything which is inconsistent therewith contained in any other law for the time being force. However, on a closer reading of the provisions of the PMLA, it is clear and conspicuous that the scheme of the law beyond doubt does not contemplate an analogous trial of scheduled offences and the offence under the PMLA by the designated court in each and every case. Having said that, Section 44(1)(c) of the PMLA should receive an interpretation which is to augment the purpose of the said Act. As a necessary corollary, it has to be held that the said provision does not imply that in every case, the competent authority shall be bound to make an application for committal of the case relating to the scheduled offences to the designated court under the PMLA, rather, the authorized officer competent to file a complaint is vested with a discretionary power to exercise only in appropriate cases where the committal to the designated court is unlikely to defeat the prosecution and frustrate speedy disposal of the case. Likewise, the word 'shall' appearing in Section 44(1)(c) of the PMLA following clause(b) thereof does not make it mandatory for the Special court to allow every application for committal which is to be examined on merit applying judicial discretion.

12. In the case at hand, the authority under the PMLA has not moved the learned Special court at Bolangir for committal of the case in respect of the scheduled offence to the PMLA court at Bhubaneswar and therefore, it has been challenged by the petitioners since the PMLA court on receiving complaint has

already summoned them. After having a detailed discussion as above, the conclusion is that if an application is moved by the competent authority under the PMLA after exercising its discretion for committal of a case in view of Section 44(1)(c) of the PMLA only in appropriate cases and in the interest of justice, in and under such circumstances, the Special court shall have to examine it and take a decision for committal of the case to the designated court under the PMLA and not otherwise. Since no such discretion has been exercised by the PMLA authority in so far as the present case is concerned and for the fact that the scheme as a whole and Section 44(1)(c) of the PMLA does not make it mandatory for committal of a case of the scheduled offences to the PMLA court, the petitioners as a matter of right cannot demand such committal of the case from the file of learned Special Judge, Vigilance, Bolangir to the PMLA court at Bhubaneswar. However, in the humble view of the Court, the PMLA authority should examine the plea of the petitioners applying its discretion and in the event found to be a fit case for committal may move the learned Special Judge, Vigilance, Bolangir for a judicious decision in terms of Section 44(1)(c) of the PMLA.

13. Accordingly it is ordered.

14. In the result, the CRLMCs stand disposed of with the concluding remark.

(R.K. Pattanaik) Judge

Kabita